Did I mention the conference?

I possibly forgot to mention this…

The Transparency Project are once again involved in a multi-disciplinary conference about the child protection system – entitled “The Child Protection System – Where do we go from here?”. This conference, is the second held by its organisers and is intended to be a genuine conversation between professionals of different disciplines AND those whose lives the court and child protection system actually affects. It is being held on 3 June in Birmingham and will be ACE*. The conference will be opened by DJ Gailey, who is a “Diversity and Community Relations Judge” (yes, apparently that’s a thing. Possibly it is just a list of the ones the MoJ thinks its safe to let loose, or possibly it is a bit more serious and skills based than that. I’m pretty confident it’s the latter – see here) and will involve all sorts of other interesting and challenging speakers and participants (Maggie Siviter, Clare Fenton-Glynn, Dr Lauren Devine, Brid Featherstone, Louise Tickle…and bringing up the rear, petite moi).

Do take a look at the information, circulate it to colleagues and friends, tweet it like crazy and share it on all your weird facebook yahoo  google groups – and book a place!

*the author is not responsible for any difference of opinion between me and thee about what constitutes “ACE”.

National Pro Bono Week – How was it for you?

Judi Evans – Head of the Family Department, St Johns Chambers, Bristol on the first ever session of the Bristol Pro Bono Family Scheme.

Last week was National Pro Bono week, and it coincided with the launch of the Bristol pro bono Family Scheme. I’d like to say it was a perfectly orchestrated plan, but in truth, the pro bono scheme took a long time to set up (over a year), and so it was rather by accident than design that the launch on the 5th November fell within National Pro Bono Week.

How was it? Only time and feedback will tell I guess.

Will it help LiPs who cannot afford legal advice, to summon the courage to enter a Court room without a lawyer, and give them some sort of road map as to where they and their children need to be headed, along with a small degree of realism? I hope so.

Will this free 30 minutes enable LiPs to conduct a contested hearing? address legal issues? cross-examine and make submissions? No, a resounding No from me. A free 30 mins legal help couldn’t possibly prepare a person for the complexities of litigation. If that was the case, what on earth have we all been doing spending years of our time reading Law and doing Bar Finals? Mastering law and procedure, and different terminology, on top of managing heightened emotions about your child is a big ask for a LiP. Some would say its impossible.

So, what does the scheme involve?

The scheme runs every Thursday from 10 – 4pm. There are 7 appointment slots, with 15 minutes break in between. Its not a ‘children day’ for 1st appointments, so people wanting advice are not waiting to go in to Court. The advice does not include representation in Court. The commitment from lawyers prepared to volunteer will be to offer 1 day a year to the scheme.

Anyone wanting 30 mins free legal advice needs to book a slot through the PSU. The PSU then send the booking form to the ‘duty lawyer’ on a Tuesday to conflict check the names. The booking form contains a summary of the issues.

And so, I put my name down to do Thursday 5th November, which happened to be the first ever session. Then a funny thing happened. Life got in the way. Life that involves paying the mortgage and having a responsibility to others who need my help every bit as much.

A private law case for a client I had represented on a number of occasions previously, was listed at 2pm for directions on the same day. Should I swap with someone else on the pro bono rota? cause inconvenience and confusion with a risk that the same thing will happen again? Should I return the afternoon case? What about my poor client, who needed continuity? I knew the history. It wasn’t fair to let that person down.

In the end it was simplest to do both, starting earlier at 9.30, and doing 5 free advice slots instead of 7. Finishing just after 1pm, and then doing my afternoon’s case.

And that’s the point with Pro bono. It will never be a substitute for properly funded legal advice and representation, those of us who volunteer will do our best. But you cant run a justice system on the good will of people who have other commitments to fulfill. Its the tiniest droplet of help in an ocean of need.

Following the introduction of LASPO the number of applications for private law orders at the Bristol CJC fell by about 40%. I understand there has been an increase in applications by about 15% this year … will the pro bono scheme make a difference? Will it enable more people to feel confident enough to seek help?

So, what was it like last Thursday? What of the people I met? Obviously I cant give too many details, these things are confidential, but what was interesting was that all who attended (apart from one) were contemplating litigation, but worried about doing so. Care worn, confused, and highly anxious even desperate is how I would describe them. “Its taking over my life, and it hasn’t even started” said one young woman, as she tried to soothe her small infant to sleep and listen to me and make notes.

And so, I talked, and answered questions about mediation, procedure, s.1 of the Children Act 1989, how to address a Judge, confirmed they could be cross-examined by their ex partner, discussed why we put the child’s welfare at the centre of the case. Made referrals in one complex matter to the Bar Pro Bono Unit, referred people to the Bristol familycourtinfo.org.uk website, encouraged people to think through what they thought was best for their child, and to look at it from the other parents point of view. Even in one case handing out the duty rota list to a person who wanted to pay for legal advice before each hearing but to self represent at Court. Is this unbundled services? (under the scheme we can subsequently act for those we meet, provided we give that person a copy of the duty rota, to draw attention to other lawyers on the list).

And so, whilst I understand the (legitimate) point of view of those who say that the duty scheme is helping /colluding with legal aid cuts, I cant agree with it. The scheme is never, ever, going to replace proper state funded help, given to people who need it, in a timely manner, for the sake of our next generation. At best, I hope the scheme will operate so as to encourage/empower people to take the first steps to seeking legal redress though the Courts as an option of last resort.

PR with a low profile

Hidden away in Schedule 2 to the Children & Families Act 2014 are some amendments to s12 of the Children Act 1989 which not everyone has yet noticed.

I don’t mean that child arrangements orders have replaced residence and contact orders (If this IS news to you please go directly to High Holborn / Chancery Lane and hand in your practising certificate TODAY). No. It’s a little nugget with potentially significant ramifications, albeit probably in only a few cases.

Because as of 22 April 2014 a person who has the benefit of a “spending time or otherwise having contact with” CAO can potentially obtain PR.

New S12(2A) Children Act 1989 now gives the court a discretion to grant PR for the life of the CAO.

But when is this power likely to be exercised? What mischief is it aimed at?

This provision was in the original Bill as laid before Parliament, rather than a late amendment, and the explanatory notes to the original Bill say only this:

110.New subsection 12(2A) enables the court to give parental responsibility to a person who is not a child’s parent or guardian, in cases where a child arrangements order provides for the child concerned to spend time with or otherwise have contact (but not live) with that person. As for subsection 12(2), parental responsibility is limited to the duration of the relevant provision.

111.As a result of new subsection 12(2A) and new subsection 10(5)(d) the entitlement to apply for a child arrangements order will be extended. New paragraph (d) of section 10(5) of the Children Act 1989 (see paragraph 5(3)(c) of Schedule 2) would provide that a person who has parental responsibility by virtue of provision under new section 12(2A) is entitled to apply for a child arrangements order. The Government considers that the extension of entitlement that would be effected by new section 10(5)(d) is narrow because there are likely to be only a few cases in which the court considers it appropriate to give parental responsibility to a person with whom a child spends time or otherwise has contact but does not live.

Not massively illuminating I think you’ll agree. But it does flag one aspect of the significance of this – those with the benefit of such PR represent a new class of people who are entitled as of right to apply for a s8 order.

And if you note the wording – this does not just grant PR for those who are having face to face contact (sorry “spending time with”). It also gives a power to grant pr to those who are “otherwise having contact”.

Thinking back to the period before the Bill was launched there was much fuss, post-Norgrove report, about removing the requirement for grandparents to seek leave before applying for contact. Norgrove flip-flopped. The Bill was silent. Except I now wonder if this was a little squeak in their direction. Of course a grandparent would still need leave to get to the point where they no longer needed leave (if you get me), but it would prevent the need for repeated leave applications. Not of course that we are supposed to be in an era of repeated s8 applications, but this may well be one side effect of the fix ’em up and discharge ’em A&E approach to private law that we are now enjoined to adopt.

So, I confess I’m not entirely sure what the drafters were getting at, and there appears to have been no debate about this provision in Parliament (based on my trawl of Hansard), which reminds me that frankly, Parliament had bigger fish to fry.

Leaving aside Parliament’s intentions, it could apply to a number of scenarios – to grannies struggling to have contact with their grandchildren in the care of their former son or daughter in law, to parents who for one reason or another fall through the cracks between the assisted conception and other legislation and are not treated legally as parents…for respite carers I suppose (e.g. Aunties who have the children stay with them in Scotland for the six week summer hols or family members who step in cyclically when a sole primary carer’s mental or physical health declines).

What is most interesting is how the court will apply or draw upon previous case law, which hitherto relates mainly to fathers. In some cases there will be an easy analogy to be drawn, but in most cases falling within this system the waters are untested as far as any test for the exercise of this discretion is concerned. Will it be commitment, motivation and bond? If that is enough for a non-parent frankly any old joe blogs could secure PR.

I am very interested to see how this pans out – it may just lie dormant for a while before any case arises or it may wither and not be used at all. But it could produce some interesting case law, and some challenges for judges dealing with not one but possibly three litigants in person and a bit of novel law.